These Newsletters are not intended as legal advice since each situation depends specifically on the facts presented. Persons reading these Newsletters should seek competent legal advice with regard to the subjects contained herein before making any employment or other decisions.
Inside This Issue
1. EEOC Releases New Resource on Artificial Intelligence and Title VII
2. Mistakes in Handbooks and Employer Policies
3. National Labor Relations Board Launches “Know Your Rights” Card Series
4. Can an Employer or Union Insist on Collective Bargaining Meetings by Zoom or Conference Call?
5. Section 301 of LMRA Preempts Biometric Information Privacy Act (“BIPA”) Claims
EEOC Releases New Resource on Artificial Intelligence and Title VII
The Equal Employment Opportunity Commission (EEOC) released on May 18, 2023, a technical assistance document, “Assessing Adverse Impact in Software, Algorithms, and Artificial Intelligence Used in Employment Selection Procedures Under Title VII of the Civil Rights Act of 1964,” which is focused on preventing discrimination against job seekers and workers. The document explains the application of key established aspects of Title VII of the Civil Rights Act (Title VII) to an employer’s use of automated systems, including those that incorporate artificial intelligence (AI). The EEOC is the primary federal agency responsible for enforcing Title VII, which prohibits discrimination based on race, color, national origin, religion, or sex (including pregnancy, sexual orientation, and gender identity).
Employers increasingly use automated systems, including those with AI, to help them with a wide range of employment matters, such as selecting new employees, monitoring performance, and determining pay or promotions. Without proper safeguards, their use may run the risk of violating existing civil rights laws.
“As employers increasingly turn to AI and other automated systems, they must ensure that the use of these technologies aligns with the civil rights laws and our national values of fairness, justice and equality,” said EEOC Chair Charlotte A. Burrows. “This new technical assistance document will aid employers and tech developers as they design and adopt new technologies.”
The EEOC’s new technical assistance document discusses adverse impact, a key civil rights concept, to help employers prevent the use of AI from leading to discrimination in the workplace. This document builds on previous EEOC releases of technical assistance on AI and the Americans with Disabilities Act and a joint agency pledge. It also answers questions employers and tech developers may have about how Title VII applies to use of automated systems in employment decisions and assists employers in evaluating whether such systems may have an adverse or disparate impact on a basis prohibited by Title VII.
“I encourage employers to conduct an ongoing self-analysis to determine whether they are using technology in a way that could result in discrimination,” said Chair Burrows. “This technical assistance resource is another step in helping employers and vendors understand how civil rights laws apply to automated systems used in employment.”
The EEOC’s technical assistance document is part of its Artificial Intelligence and Algorithmic Fairness Initiative, which works to ensure that software—including AI—used in hiring and other employment decisions complies with the federal civil rights laws that the EEOC enforces.
Mistakes in Handbooks and Employer Policies
The most common mistakes in handbooks and policies include:
• Omitting At-Will Disclaimers
• Suggesting that employment will be permanent employment
• Using language that can be alleged to create implied contract
• Using language that discharge can only be for cause
• Not making sure employees sign an acknowledgment form
• Omitting policies such as Anti-Harassment Policy and FCRA/Paid FMLA Policy/Paid Sick Leave Policy
• Not consistently applying the policies in your Handbook
• Not training your managers to properly apply your policies
The list is not exhaustive, but it is a great place for employers to start.
National Labor Relations Board Launches “Know Your Rights” Card Series
On March 28, 2023, National Labor Relations Board General Counsel Jennifer Abruzzo launched a “Know Your Rights” card series to educate workers on their rights under the National Labor Relations Act. The series is commencing with two new “Know Your Rights” tri-fold cards, which the Agency is making available in English and Spanish. One card provides information on protections for immigrant workers, while the other card talks about Weingarten rights (when union reps. can participate in interview). The cards are designed to be printed, folded, and used by workers in the workplace. Additional cards in the series will be rolled out this year.
“This card series is one of many steps we’re taking to ensure that all workers know their workplace rights and understand that there is a federal agency, the NLRB, that they may seek help from if they feel that their rights have been violated,” said General Counsel Jennifer Abruzzo. “The cards will advance the NLRB’s efforts to remove barriers for workers in underserved communities through education, outreach, and processes so that all workers can safely access the NLRB.”
Can an Employer or Union Insist on Collective Bargaining Meetings by Zoom or Conference Call?
The answer is a resounding NO since the NLRB has long held that face to face negotiations between an employer and a union are effectively carried out by personal meetings and conferences. Thus, absent mutual agreement by the parties, bargaining face to face negotiations are essential. Insistence of submission of proposals in advance prior to bargaining does not meet the obligation to bargain collectively. Until the U.S. Supreme court overturns current precedent bargaining face to face is a must absent mutual agreement.
The exception to Covid-19 permissible non-face to face bargaining is not precedence setting.
Section 301 of LMRA Preempts Biometric Information Privacy Act (“BIPA”) Claims
On March 23, 2023, the Illinois Supreme Court held that Section 301 of Labor Management Relations Act (“LMRA”) preempts BIPA claims under collective bargaining agreements.
Former employee Walton sued his former employer Roosevelt University (“Roosevelt”) because Roosevelt required Walton to use scans of his hand to clock in and out of work.
In summary, the Illinois Supreme Court held Section 301 preempts BIPA claims when an employer invokes a management rights clause from a Collective Bargaining Agreement in response to a BIPA claim initiated by a bargaining unit employee.
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